Sex, Swingers, and Porn Stars in Military Justice

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I suppose I have your attention now. For those who seek to condemn me for this post, please refer your negative comments to Charlie Thomas, the Felonious Munk. It was a dare, and a double-dog one at that. If you have positive comments, however, forget sending them to Charlie, keep sending those to me.

Charlie was chatting with me the other day about the conviction of Air Force Technical Sergeant (Tech Sgt) David Gutierrez. Who is he? Well, you may be thankful that you never met him at a party.

An Air Force sergeant convicted of exposing multiple sex partners to HIV at swinger parties was sentenced Wednesday to eight years in military prison and will be dishonorably discharged after serving his time.

A court martial judge earlier found Tech. Sgt. David Gutierrez guilty on seven of eight counts of aggravated assault and violating his commander’s order to notify partners about his HIV status and usecondoms. The judge also convicted Gutierrez of indecent acts for having sex in front of others and eight counts of adultery.

The judge, Lt. Col. William Muldoon, delivered the sentence after a brief hearing, during which Gutierrez had begged between sobs not to be discharged so he could keep the military medical benefits he will now lose. Gutierrez also will be reduced to the lowest enlistment rank while serving out his military confinement.

Charlie really doesn’t have a problem with the aggravated assault and violating the order to inform sex partners. He gets it, and I get it too. Gutierrez was, after all, slinging his body fluids around someone’s living room with multiple partners without their knowledge of his loathsome disease.

Really, Charlie’s consternation arises from the Adultery charges. It seems strange that a crime should result from a consensual, adult act. What’s up with the bedroom police? (or, in the case of Gutierrez, the Bedroom/Living Room/Spare Room/Utility Room…..well, you get the point….police?).

What is adultery in the minds of the military? Well, we must look to Article 134 of the Uniform Code of Military Justice. Article 134 is a catch-all for any conduct deemed “prejudicial to good order and discipline” or “service discrediting.” That doesn’t leave much to the imagination, does it?


By executive order, Article 134 has several specified crimes. These range from Negligent Homicide to the Improper Wear of Badges, Medals, or Tabs. Adultery is one. The elements are as follows:

  1. That the accused wrongfully had sexual intercourse with a certain person;
  2. That, at the time, the accused or the other person was married to someone else; and
  3. That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Mistake of fact is a defense. Here, however, Gutierrez could not say “I didn’t realize I was married!”

Now, if you are a good lawyer, you have a few questions.

What is sexual intercourse? As a matter of common sense, this is a no brainer. As a matter of legal interpretation, we need to know more. In the military, this is defined in detail. In the case of Gutierrez, the prosecution had no problem proving this occurred.

Married? Well, separation doesn’t count. Not living together doesn’t count. Filing for divorce doesn’t count. Someone is deemed married by the military until a judge bangs the gavel and declares the divorce complete. Gutierrez was “happily” married, as were many of his swinger partners.

Now, our attention turns to the third element. Is this prejudicial to good order and discipline? Well, to prove that, the prosecutors must show where it impacts his military organization’s ability to work and succeed or his ability to perform his duties as a Tech Sgt. This doesn’t seem like an easy sell. Of course, the good order and discipline issues are only one of the possibilities.

Here, the prosecution relied upon his conduct being “service discrediting.” That is, of a nature to “…bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem.” Considering the outlook of the average military judge or jury, this one is an easy sell. One can imagine the jokes that already exist about the Air Force and this case. (If you know of any, please feel free to email me.)

Charlie doesn’t like the idea of bedroom police. I don’t either. We both know about the ruling in Lawrence v. Texas. Yet, is it still Adultery when the parties consent? The answer is yes, and the reason is pretty simple. The military wanted a rule that protected good order and discipline, primarily. After all, there have been and are problems with the spouses of deployed or training servicemembers falling prey to cassanovas remaining back at Ft. Lonely Spouse. Imagine the impact of such an act on the poor kid in Iraq or Afghanistan who thinks that his wife is waiting faithfully for him to return. It takes his mind off the mission, and that can get people killed. The same holds true with individuals engaging in sexual relationships while working within the same command, and you add the possibility of workplace disparities.

As a result, the military created a rule with as few holes as possible. Viola. Article 134 Adultery.

Just for fun, let’s take a few vignettes.

Sergeant Gettinit, a married man, is a squad leader at Camp Swampy. A new Private arrives in his squad. She is cute and he immediately puts the moves on her. She can’t resist. They have sex in her room in the barracks. She tells other privates. Then, she is promoted to Private First Class before them. They tell. Both Sergeant Gettinit and the Private are guilty of adultery and will be punished—with the SGT getting harsher punishment because his actions clearly have a horrible impact on the attitudes and perspectives of his other subordinates.

Consider this, too.

Sergeant Gettinit, a married man, lives in government housing on the military installation. His neighbor goes to Iraq. His neighbor’s wife remains behind. One day, he goes to her house to fix her plumbing. He really, really fixes her plumbing. His wife discovers it. She reports him. He is guilty of Adultery, but, his buddy’s wife is not guilty of anything because she is a civilian.

Notice that, in both of these, the acts are consensual. There is no rape or sexual assault–just two adults having consensual fun. Yet, it is a crime, and you can see the effect that each of these would have upon the military.

Let’s take it a step further. Suppose the act is actually a job, rather than a mere social indiscretion.

Suppose someone named Captain Black (female) decides to perform in pornographic movies. She is married, but her husband supports her moonlighting decision. She performs in a movie with another male. Instantly, she becomes a pinup for male soldiers everywhere.

Is she guilty of adultery? Check the elements of the crime. Check what it means to be service discrediting. Yep, got it. And, yes, my last vignette is based partly on the life and times of a former Army Medical Service Corps Captain.

Back to Gutierrez, the charges of Adultery are secondary to the assault and disobeying orders charges. Without those, he would not face a court-martial. Instead, he’d face some lesser punishment or no punishment at all.

It happens often. A servicemember will be charged with a harsh crime such as sexual assault or rape. As a secondary matter, he or she are also charged with Adultery. The sad thing is that, if they are acquitted of the harsh crimes, but convicted of the Adultery, they must live the rest of their lives with a federal conviction for what is, in the eyes of the law, a consensual sexual act. You see it often: “I’m married, I did have sex with her, but it was completely consensual, and I didn’t sexually assault her.”

Guilty.

So, Charlie, there you go. Sex, Swingers, and Pornstars. I hope you are happy.

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4 thoughts on “Sex, Swingers, and Porn Stars in Military Justice

  1. I agree that if you have HIV, you have a obligation not to put other people at risk of contracting it, but what about the responsibilities of the other people who consented to having sex with David Gutierrez? I used to work of a public health department and my primary job was to test people for HIV. I told everyone to assume that their partners had every disease in the book until proven otherwise. Do you think he still would have been charged with aggravated assault if he didn’t know that he was HIV+ until after he had had sex with these eight people?

    • I’ll answer your questions, but I’d like you to do a bit of homework before I do.

      1. How do you think the responsibilities of others should impact his crime or the sentence for his crime? Aside from that, what do you think should happen to them since they consented to having sex with him? (Note: According to the sources I read, none of them actually became HIV+)

      2. Look at the definition of assault. Look at what constitutes a battery. Look at offer vs. attempt assaults. Look at the mens rea of each. Once you’ve done this, let me know if you think that it would still be an assault if he had no knowledge of his HIV+ status.

      • Ok…I’ll play along…

        1. I think his motivation should impact his crime. If he was trying to infect people with HIV, that’s different than someone who was in denial about being HIV+, or someone who didn’t understand how the virus is transmitted. Good luck proving any of those things in court. I wonder if they would have charged him with aggravated assault if he’d only put his partners at risk of contracting syphilis or herpes. One is curable but deadly if untreated and the other is incurable but manageable. My guess is no. I think the court should have considered the fact that the partners consented to having sex with him so they knowingly and willingly put themselves at risk for an unwanted result.

        An analogy would be asking someone to hit me and then getting upset when they break my arm. The law generally prohibit mutual combat, but I think it should be treated as a lesser crime than someone who is unwillingly mugged.

        2. According to dictionary.law.com – Assault = “the threat or attempt to strike another, whether successful or not, provided the target is aware of the danger.”
        Battery = “the actual intentional striking of someone, with intent to harm, or in a “rude and insolent manner…even if the injury is slight.”

        The mens rea for an assault is either the intention to cause another to fear immediate unlawful personal violence or recklessness as to whether such fear is caused. (from http://legaleasy.wordpress.com/2007/11/02/non-fatal-offences-against-the-person/)
        If he didn’t know about his HIV status, it can’t be assualt. There’s no intent to cause fear.

      • Motivation: Before we consider his motivation, let’s consider what he knew and the acts performed with that knowledge.

        1. He knew he had HIV. He knows how HIV is transmitted. He also knew of the direct order by his commander that explicitly explained his responsibilities with any sexual partner. (military members must be counseled by both a Public Health Nurse and their Commander)
        2. With the knowledge of #1, he had sex with multiple partners without informing them of his HIV status.
        3. By having sex with them, he placed them in clear danger of contracting the disease.

        Motivation is not an element of the crimes, and motivation is not mens rea. Rather, his knowledge at the time of his acts are important and critical in proving the crime–not the motivation behind committing the acts.

        Do not confuse proving the crime with mitigating the sentence. Those are two very distinct things. The elements of the crime are critical as is caselaw interpreting and applying the elements in specific situations (see below).

        “I think the court should have considered the fact that the partners consented…” Was there evidence that the court did not consider that fact? I find it hard to believe that a military judge failed in this consideration.

        Yes, his partners were willing participants. Had they not been, additional charges of Sexual Assault or Rape would be present rather than just the assault charges, violating an order, and adultery. So, you see, the fact that they were willing participants was actually considered in the drafting of charges. Plus, I’m confident the judge was more than aware of the definition of “swinger party” at the time he formulated the sentence–from the prosecution highlighting their repugnant nature to the defense emphasizing the consensual nature of the acts.

        As far as your comments about syphilis or herpes, that has already been addressed, but not for the reasons you use. See U.S. v. Stewart, CMA 1989, 29 M.J. 92.

        Very good on the last question. Bronze star. You would have received a gold star had you actually cited law (or a persuasive treatise or scholarly article) rather than unpersuasive websites (criminal laws are available online and through your complimentary student Westlaw account). Either way, your efforts are noted and appreciated. Note: You would have received extra credit by mentioning, even in passing, the phrase “means likely.”

        A Westlaw Next search of “military hiv assault” points one toward the text and commentary on the UCMJ crime of Assault, which explains HIV related assaults in good detail:

        HIV infection

        Even assuming accused, who was infected with Human Immunodeficiency Virus (HIV), had some sort of constitutional right to private consensual heterosexual intercourse, government had sufficiently compelling interests to proscribe unprotected sexual intercourse between HIV-positive servicemembers and uninfected, unmarried, noncivilian partners, which interests included preventing spread of HIV and keeping military in state of readiness, to justify accused’s conviction of assault with means likely to cause death or grievous bodily harm. U.S. v. Bygrave, U.S. Armed Forces 1997, 46 M.J. 491. Military Justice ​ 596

        Unprotected sexual intercourse by service member can be punished as assault on theory of intentional battery, if service member knows that he carries human immunodeficiency virus (HIV) and knows that he can transmit HIV through unprotected sexual intercourse. U.S. v. Schoolfield, CMA 1994, 40 M.J. 132, certiorari denied 115 S.Ct. 1162, 513 U.S. 1178, 130 L.Ed.2d 1118. Military Justice ​ 596

        In determining whether accused’s sexual intercourse was “likely” to produce death or grievous bodily harm, because accused was infected with human immunodeficiency virus (HIV), question was not statistical probability of HIV invading victim’s body, but rather likelihood of virus causing death or serious bodily harm if it invaded victim’s body, for purposes of aggravated assault charge; probability of infection need only be more than merely fanciful, speculative, or remote possibility. U.S. v. Joseph, CMA 1993, 37 M.J. 392. Military Justice ​ 596

        Accused’s conduct in engaging in sexual intercourse with knowledge that he was positive for human immunodeficiency virus (HIV), without first informing sexual partner of his condition, satisfied “offensive touching” component of assault consummated by battery, regardless of whether protective measures were utilized. U.S. v. Joseph, CMA 1993, 37 M.J. 392. Military Justice ​ 596

        Soldier diagnosed as being positive for human immunodeficiency virus (HIV) can be convicted of assault for having unwarned and unprotected sexual intercourse. U.S. v. Banks, ACMR 1993, 36 M.J. 1003, review denied 40 M.J. 37. Military Justice ​ 596

        Evidence would not support conviction for assault through offer, where woman who had sexual intercourse with accused who had tested positive for the Human Immunodeficiency Virus (HIV) did not learn until long after sexual encounters that accused was HIV positive; woman was not placed in reasonable apprehension of immediate unlawful touching of her person. U.S. v. Perez, ACMR 1991, 33 M.J. 1050. Military Justice ​ 596

        Evidence was sufficient to support aggravated assault conviction of accused who knew he had tested positive for the Human Immunodeficiency Virus (HIV), but had sexual intercourse with female naval reservist, for commission of assault by means likely to produce death or grievous bodily harm, even though accused used condom and alleged that condom he used contained nonoxynol-9; accused knew that HIV could be transmitted through sexual intercourse and that condom was not surety for nontransfer of HIV, evidence at trial showed failure rate in use of condoms to prevent pregnancies, and accused had sexual intercourse with female reservist without revealing to her that he was HIV-infected. U.S. v. Joseph, NMCMR 1991, 33 M.J. 960, review granted 36 M.J. 17, affirmed 37 M.J. 392. Military Justice ​ 599

        Evidence supported conviction for assault with means likely to produce death or grievous bodily harm based upon attempted anal intercourse when accused knew he was infected with Human Immunodeficiency Virus (HIV); evidence permitted conclusion that accused attempted to engage in unprotected anal intercourse which would have been likely to transmit disease that could ultimately result in death. U.S. v. Johnson, CMA 1990, 30 M.J. 53, certiorari denied 111 S.Ct. 294, 498 U.S. 919, 112 L.Ed.2d 248. Military Justice ​ 599

        Accused committed aggravated assault by knowingly exposing victim to human immunodeficiency virus and substantial risk of developing Acquired Immune Deficiency Syndrome (AIDS); testimony that there was 30 to 50% chance of death resulting from exposure to virus was sufficient to fall within rule permitting inference that means was likely to produce death or grievous bodily harm if natural and probable consequence of particular means would be death or grievous bodily harm. U.S. v. Stewart, CMA 1989, 29 M.J. 92. Military Justice ​ 596

        Accused’s activity regarding anal sodomy with his penis while knowing he was infected with Human Immunodeficiency Virus did extend beyond mere preparation, for purposes of aggravated assault charge, although accused was prevented from having anal intercourse with victim when victim tightened his anus to stop attempt and victim’s drunkenness and vomiting caused accused to lose interest. U.S. v. Johnson, AFCMR 1988, 27 M.J. 798, review granted in part 28 M.J. 338, affirmed 30 M.J. 53, certiorari denied 111 S.Ct. 294, 498 U.S. 919, 112 L.Ed.2d 248. Military Justice ​ 596

        10 U.S.C.A. § 928 (West)

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